Wilson v. State of Georgia
Encyclopedia
Wilson v. State, 652 S.E. 2d 501, 282 Ga. 520 (2007) was a Georgia
court case brought about to appeal the aggravated child molestation conviction
of Genarlow Wilson (born April 8, 1986 to Juanessa Bennett and Marlow Wilson).
Wilson was convicted of aggravated child molestation in 2005, after, at the age of seventeen, he had engaged in oral sex
with a fifteen-year-old at a New Year's Eve party, an offense carrying a mandatory penalty of ten years imprisonment.
At the time of his conviction, provisions for similarity in age that allowed underage consent to be taken into account were only applicable to vaginal sex. Because the case involved oral sex the consent of the girl was not at that time legally relevant.
On October 26, 2007, the Georgia State Supreme Court, while not overturning the conviction itself, ruled that Wilson's sentence was cruel and unusual ("grossly disproportionate"). He was released later that day, after serving over 2 years of his 10 year prison sentence in the Al Burruss Correctional Training Center
in Forsyth, Georgia
.
party at a hotel room in 2003, and later being offered and receiving oral sex from a 15-year-old girl. The video shows the 17-year-old girl on the bathroom floor, then later having sex with Wilson. She appeared sleepy or intoxicated during the sex act but did not ask Wilson to stop. Waking up naked and disoriented the next morning, she claimed to have been raped
. Investigating the alleged rape, police later found condoms and evidence of drinking, as well as the video camera, in the motel room used for the party.
A jury acquitted Wilson of raping the older girl, but convicted him of aggravated child molestation against the 15-year-old. The "aggravated" nature of the charge refers to fellatio
(oral sex) rather than a mere "immoral or indecent act." Had the two teenagers had intercourse without oral sex, Wilson would have been charged with a misdemeanor, punishable up to 12-months, with no sex offender status, instead of the mandatory 10-year minimum term that the judge gave him.
in Georgia is 16, they voted to convict him of aggravated child molestation for the oral sex incident, with the forewoman tearfully reading the verdict. Some jury members later complained they had not understood the verdict would result in a 10 year minimum sentence, plus one year on probation
.
Wilson received the 10-year sentence following a refusal to enter into a proposed plea bargain
, stating of his adamant belief that "It's all about doing what's right [...] And what's right is right, and what's wrong is wrong. And I'm just standing up for what I believe in." His decision to reject the plea agreement, as well as his continued fight to overturn his conviction, takes into account that sex offender
s in Georgia must register themselves and are subject to penalty laws for life, and that the law was not intended to penalize teenage partners (a fact which has since been included in updated legislation). As the law stands, Wilson would not even be able to return to his own family after an early release, as he has an 8-year-old sister Jiaya Bennett with whom he would be forbidden contact. The other young males involved (including one charged for the same oral sex acts as Wilson) accepted plea bargains with the possibility of parole; they are required to register as convicted sex offenders. Wilson had been offered, and rejected, a plea bargain for a five year sentence with the possibility of parole before the trial. After the jury had returned the guilty verdict, the prosecutor offered the same 5-year plea bargain again, and Wilson refused again. Another young man involved in the case had accepted a similar 5-year plea bargain and was paroled after two years.
with a maximum sentence of one year in prison, and no sex offender registration. While Wilson's attorneys argued that such a change in the law should reverse his conviction , the Legislature specifically prohibited the bill (House Bill 1059 of the 2006 Legislative session) from being applied retroactively
.
A bipartisan group of legislators introduced a bill in the 2007 Georgia legislative session (S.B. 37) that would allow Wilson's sentence to be reduced by the courts. This session was adjourned in April, before the bill could be considered. Several legislators have subsequently called for a rare special session of the Legislature to reconsider the bill.
After the trial ended, the District Attorney
's office received numerous open record requests for the videotape. David McDade inquired of the Prosecuting Attorneys' Council of Georgia whether the videotape had to be released under the Open Records Act. The Council concluded that "if no one has filed for a protection order ... claiming that disclosure of the video tape would invade individual privacy, we can find no reason why disclosure of the video tape is not required under ... the Open Records Act." Ignoring the fact that it was the Legislature that wrote the Open Records Law (and which caused the initial controversy by refusing to apply the "Romeo and Juliet" clause retroactively), Georgia State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases. "'I'm going to call it the David McDade Act,' Jones said. 'Sometimes we have to protect our kids from district attorneys.'" Because the participants shown having sex in the video were under 18, the videotape constitutes child pornography
under federal law
. The Adam Walsh Child Protection and Safety Act
prohibits prosecutors from allowing defendants in criminal proceedings to possess a copy of any evidence that constitutes child pornography, even if the purpose is to mount a defense against the charge. Under this law, Wilson and his defense team are prohibited from having a copy of the videotape that prosecutor McDade has distributed to anyone else who has requested it.
The governor does not have pardon
power in Georgia, but the prosecutor has the power to set aside the verdict. The prosecutor Eddie Barker, apparently waiting for an admission of guilt, has said "the one person who can change things at this point is Genarlow. The ball's in his court."
filed by Wilson's attorneys, the Superior Court of Monroe County in the State of Georgia reduced Wilson's charge to misdemeanor aggravated child molestation, ordered that his name not be placed on the sex-offender registry, and resentenced him to 12 months and with credit for time served. Stated Judge Thomas Wilson, "The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice."
Georgia's Attorney General
Thurbert Baker
has appealed Judge Wilson's decision, staying Genarlow Wilson's release. Baker maintains the judge did not have the authority to overturn the conviction and says there is a plea bargain
offer on the table.
According to Baker, the plea deal could allow Wilson to be eligible for First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed. It could also result in Wilson receiving a reduced sentence, possibly leading to his release based upon time already served. Wilson's lawyer, B.J. Bernstein, would not accept the proposed deal because it would require her client to plead guilty to a felony with a fifteen year sentence, forcing him to register as a sexual offender for up to fifteen years.
until the appeal could be heard. Whitney Tilson, a New York City
investment manager, and others offered to finance a million dollar bond on Wilson's behalf, but District Attorney McDade noted that Wilson's crime, aggravated child molestation, prevented him from being released on bond. Douglas County Superior Court Judge David Emerson agreed with McDade and canceled a scheduled bond hearing. Bernstein announced that she would file an appeal.
, appears to be grossly disproportionate to his crime."
The dissenting opinion said that the legislators had explicitly made the law non-retroactive
and, therefore, should not be applied to Wilson. The majority opinion claimed, however, that it did not apply the law retroactively but instead that the punishment was unconstitutionally cruel and unusual
. The dissenters argued that the precedents the majority relied upon involved legislation with no prohibitions against retroactivity.
Attorney General Baker said he would not appeal the ruling.
published an editorial condemning the Georgia Supreme Court's original refusal to hear Wilson's appeal, noting that Wilson was not a sexual predator, and that his behavior would have only been a misdemeanor if he had actually had sex with the girl, instead of having had oral sex (due to a loophole in the applicable law's provision intended to prevent exactly this kind of dubious conviction).
Oral sex has long had a special criminal status in Georgia law; until 1998, oral sex even between husband and wife was punishable with up to 20 years in prison. The United States Supreme Court, in 1986, originally upheld Georgia's anti-sodomy law (which covered both oral sex and anal sex) as constitutional even when applied to criminalize two consenting adults in the privacy of their bedroom (Bowers v. Hardwick
, 478 U.S. 176
). Twelve years later, Georgia's Supreme Court would, however, find that the same law upheld by the U.S. Supreme Court was unconstitutional on state constitutional grounds, at least as applied to oral sex with persons over the age of consent (Powell v. Georgia
, S98A0755, 270 Ga. 327, 510 S.E. 2d 18
(1998)).
On April 30, 2007, The New York Times published another editorial noting that Georgia's legislature had closed the loophole in the law and that if Wilson were tried today he would now be facing only misdemeanor charges for the same act. However, the State Senate adjourned for the year without taking up a bill allowing judges to review previous cases like Wilson's and Wilson continued to serve a mandatory 10-year sentence. The Times also noted that Wilson's attorneys had applied for a writ of habeas corpus with the U.S. Supreme Court and it urged the Court to grant it. In the same editorial, the Times lambasted prosecuting district attorney David McDade for continuing to publicly charge that Wilson participated in gang-raping a 17-year-old, even though he was acquitted of charges in that case.
On May 24, 2007 former US president Jimmy Carter
wrote a letter to state attorney-general Thurbert Baker
(who is also African-American) in which he questioned whether Wilson's race had played a role in his treatment. He wrote: "The racial dimension of the case is likewise hard to ignore and perhaps unfortunately has had an impact on the final outcome of the case," pointing out that white defendants have received lesser punishments for similar conduct.
Following the June ruling in Monroe County, both Attorney General Baker and Georgia Governor
Sonny Perdue
expressed concern that other convicted child molesters might attempt similar legal tactics to get out of prison. While Baker called the Wilson sentence "harsh", he also noted that he had taken an oath to uphold state law.
Black leaders such as Rev. Joseph Lowery
and the Congressional Black Caucus
have criticized Baker's appeal of the Monroe County ruling. Meanwhile, Rev. Markel Hutchins, a civil rights activist in Atlanta, has criticized them for not having all the facts and failing to stand up for the victims in the case. He also questioned the motivations of Wilson's attorney, Bernstein, and urged her to attempt to find a resolution in the case.
The NAACP also marched on Douglas County, Georgia for the injustice done on Genarlow's behalf. There were many participants there including the girl's mother who stated that she forgave Genarlow and was for his release. The speakers targeted Douglas county judicial system and particularly David McDade for his unfair treatment.
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
court case brought about to appeal the aggravated child molestation conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
of Genarlow Wilson (born April 8, 1986 to Juanessa Bennett and Marlow Wilson).
Wilson was convicted of aggravated child molestation in 2005, after, at the age of seventeen, he had engaged in oral sex
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
with a fifteen-year-old at a New Year's Eve party, an offense carrying a mandatory penalty of ten years imprisonment.
At the time of his conviction, provisions for similarity in age that allowed underage consent to be taken into account were only applicable to vaginal sex. Because the case involved oral sex the consent of the girl was not at that time legally relevant.
On October 26, 2007, the Georgia State Supreme Court, while not overturning the conviction itself, ruled that Wilson's sentence was cruel and unusual ("grossly disproportionate"). He was released later that day, after serving over 2 years of his 10 year prison sentence in the Al Burruss Correctional Training Center
Al Burruss Correctional Training Center
The Burruss Correctional Training Center is a medium security level prison located in Forsyth, Georgia in Monroe County, Georgia.It opened in 1986, and consists of four buildings. The prison provides work and rehabilitation programs for general population inmates and operates a 148-bed inmate boot...
in Forsyth, Georgia
Forsyth, Georgia
Forsyth is a city in Monroe County, Georgia, United States. The population was 3,776 at the 2000 census. This number was corrected to read 4,300. The city is the county seat of Monroe County.Forsyth is part of the Macon Metropolitan Statistical Area...
.
Background
The conviction was based on an amateur video tape showing Wilson engaging in sex with a 17-year-old girl during a private New Year's EveNew Year's Eve
New Year's Eve is observed annually on December 31, the final day of any given year in the Gregorian calendar. In modern societies, New Year's Eve is often celebrated at social gatherings, during which participants dance, eat, consume alcoholic beverages, and watch or light fireworks to mark the...
party at a hotel room in 2003, and later being offered and receiving oral sex from a 15-year-old girl. The video shows the 17-year-old girl on the bathroom floor, then later having sex with Wilson. She appeared sleepy or intoxicated during the sex act but did not ask Wilson to stop. Waking up naked and disoriented the next morning, she claimed to have been raped
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
. Investigating the alleged rape, police later found condoms and evidence of drinking, as well as the video camera, in the motel room used for the party.
A jury acquitted Wilson of raping the older girl, but convicted him of aggravated child molestation against the 15-year-old. The "aggravated" nature of the charge refers to fellatio
Fellatio
Fellatio is an act of oral stimulation of a male's penis by a sexual partner. It involves the stimulation of the penis by the use of the mouth, tongue, or throat. The person who performs fellatio can be referred to as the giving partner, and the other person is the receiving partner...
(oral sex) rather than a mere "immoral or indecent act." Had the two teenagers had intercourse without oral sex, Wilson would have been charged with a misdemeanor, punishable up to 12-months, with no sex offender status, instead of the mandatory 10-year minimum term that the judge gave him.
Initial trial and plea deal
The then 15 year old girl, who has remained unnamed in the press as a 'victim of a sex offense', has repeatedly stated that the act of oral sex was consensual, though she legally could not consent. The jury acquitted Wilson of the rape charge, but as the age of consentAge of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
in Georgia is 16, they voted to convict him of aggravated child molestation for the oral sex incident, with the forewoman tearfully reading the verdict. Some jury members later complained they had not understood the verdict would result in a 10 year minimum sentence, plus one year on probation
Probation
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...
.
Wilson received the 10-year sentence following a refusal to enter into a proposed plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
, stating of his adamant belief that "It's all about doing what's right [...] And what's right is right, and what's wrong is wrong. And I'm just standing up for what I believe in." His decision to reject the plea agreement, as well as his continued fight to overturn his conviction, takes into account that sex offender
Sex offender
A sex offender is a person who has committed a sex crime. What constitutes a sex crime differs by culture and by legal jurisdiction. Most jurisdictions compile their laws into sections such as traffic, assault, sexual, etc. The majority of convicted sex offenders have convictions for crimes of a...
s in Georgia must register themselves and are subject to penalty laws for life, and that the law was not intended to penalize teenage partners (a fact which has since been included in updated legislation). As the law stands, Wilson would not even be able to return to his own family after an early release, as he has an 8-year-old sister Jiaya Bennett with whom he would be forbidden contact. The other young males involved (including one charged for the same oral sex acts as Wilson) accepted plea bargains with the possibility of parole; they are required to register as convicted sex offenders. Wilson had been offered, and rejected, a plea bargain for a five year sentence with the possibility of parole before the trial. After the jury had returned the guilty verdict, the prosecutor offered the same 5-year plea bargain again, and Wilson refused again. Another young man involved in the case had accepted a similar 5-year plea bargain and was paroled after two years.
Legislative action
In part because of the publicity surrounding this case, the law under which Wilson was convicted was changed after his conviction; the act would now be treated as a misdemeanorMisdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
with a maximum sentence of one year in prison, and no sex offender registration. While Wilson's attorneys argued that such a change in the law should reverse his conviction , the Legislature specifically prohibited the bill (House Bill 1059 of the 2006 Legislative session) from being applied retroactively
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
.
A bipartisan group of legislators introduced a bill in the 2007 Georgia legislative session (S.B. 37) that would allow Wilson's sentence to be reduced by the courts. This session was adjourned in April, before the bill could be considered. Several legislators have subsequently called for a rare special session of the Legislature to reconsider the bill.
After the trial ended, the District Attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
's office received numerous open record requests for the videotape. David McDade inquired of the Prosecuting Attorneys' Council of Georgia whether the videotape had to be released under the Open Records Act. The Council concluded that "if no one has filed for a protection order ... claiming that disclosure of the video tape would invade individual privacy, we can find no reason why disclosure of the video tape is not required under ... the Open Records Act." Ignoring the fact that it was the Legislature that wrote the Open Records Law (and which caused the initial controversy by refusing to apply the "Romeo and Juliet" clause retroactively), Georgia State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases. "'I'm going to call it the David McDade Act,' Jones said. 'Sometimes we have to protect our kids from district attorneys.'" Because the participants shown having sex in the video were under 18, the videotape constitutes child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
under federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
. The Adam Walsh Child Protection and Safety Act
Adam Walsh Child Protection and Safety Act
The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by U.S. President George W. Bush on July 27, 2006. The Walsh Act organizes sex offenders into three tiers and mandates that Tier 3 offenders update their whereabouts every three months with lifetime...
prohibits prosecutors from allowing defendants in criminal proceedings to possess a copy of any evidence that constitutes child pornography, even if the purpose is to mount a defense against the charge. Under this law, Wilson and his defense team are prohibited from having a copy of the videotape that prosecutor McDade has distributed to anyone else who has requested it.
Appeals
The case was appealed to the Georgia Supreme Court; the court twice refused to hear the case, with the presiding judge delivering an opinion that said she was "very sympathetic to Wilson's argument" but that she was bound by the Legislature's decision to make the law not apply retroactively.The governor does not have pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
power in Georgia, but the prosecutor has the power to set aside the verdict. The prosecutor Eddie Barker, apparently waiting for an admission of guilt, has said "the one person who can change things at this point is Genarlow. The ball's in his court."
Habeas petition
In response to a petition of habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
filed by Wilson's attorneys, the Superior Court of Monroe County in the State of Georgia reduced Wilson's charge to misdemeanor aggravated child molestation, ordered that his name not be placed on the sex-offender registry, and resentenced him to 12 months and with credit for time served. Stated Judge Thomas Wilson, "The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice."
Georgia's Attorney General
Attorney General of Georgia
The attorney general of Georgia is the chief law enforcement officer and lawyer for the U.S. state of Georgia. The attorney general is elected to a four-year term at the same time as elections are held for Governor and other offices....
Thurbert Baker
Thurbert Baker
Thurbert E. Baker was the Attorney General of the U.S. state of Georgia, serving from 1997, when he was appointed by Governor Zell Miller...
has appealed Judge Wilson's decision, staying Genarlow Wilson's release. Baker maintains the judge did not have the authority to overturn the conviction and says there is a plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
offer on the table.
According to Baker, the plea deal could allow Wilson to be eligible for First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed. It could also result in Wilson receiving a reduced sentence, possibly leading to his release based upon time already served. Wilson's lawyer, B.J. Bernstein, would not accept the proposed deal because it would require her client to plead guilty to a felony with a fifteen year sentence, forcing him to register as a sexual offender for up to fifteen years.
Bond hearing
Following the grant of habeas and Baker's appeal, Bernstein urged prosecutors to allow her client to be set free on bondBail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
until the appeal could be heard. Whitney Tilson, a New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
investment manager, and others offered to finance a million dollar bond on Wilson's behalf, but District Attorney McDade noted that Wilson's crime, aggravated child molestation, prevented him from being released on bond. Douglas County Superior Court Judge David Emerson agreed with McDade and canceled a scheduled bond hearing. Bernstein announced that she would file an appeal.
Georgia Supreme Court appeal hearing
On July 9, 2007, the Georgia State Supreme Court set a hearing for Genarlow Wilson's appeal for July 20, 2007, more than two months earlier than previously scheduled. The first motion was an appeal by the State Attorney General Baker of the Monroe County Superior Court judge's decision to reduce Wilson's felony conviction to a misdemeanor and release him. The second motion was brought by Wilson's attorneys to have him released on bond while the appeals are heard which the Douglas County Superior Court judge denied.Wilson's release
On October 26, 2007, the Georgia State Supreme Court ruled 4-3 that Wilson's sentence was cruel and unusual, and ordered him released. He was released from prison in the late afternoon that day. The majority opinion said that the new law (which made oral sex between minors a misdemeanor instead of a felony) “represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants” and “reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment. ... Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson’s crime does not rise to the level of culpability of adults who prey on children and that, for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of ten years in prison without the possibility of probation or paroleParole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
, appears to be grossly disproportionate to his crime."
The dissenting opinion said that the legislators had explicitly made the law non-retroactive
Retroactivity
Retroactivity in law is the application of a given norm to events that took place or began to produce legal effects, before the law was approved...
and, therefore, should not be applied to Wilson. The majority opinion claimed, however, that it did not apply the law retroactively but instead that the punishment was unconstitutionally cruel and unusual
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
. The dissenters argued that the precedents the majority relied upon involved legislation with no prohibitions against retroactivity.
Attorney General Baker said he would not appeal the ruling.
Reaction
On December 21, 2006, The New York TimesThe New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
published an editorial condemning the Georgia Supreme Court's original refusal to hear Wilson's appeal, noting that Wilson was not a sexual predator, and that his behavior would have only been a misdemeanor if he had actually had sex with the girl, instead of having had oral sex (due to a loophole in the applicable law's provision intended to prevent exactly this kind of dubious conviction).
Oral sex has long had a special criminal status in Georgia law; until 1998, oral sex even between husband and wife was punishable with up to 20 years in prison. The United States Supreme Court, in 1986, originally upheld Georgia's anti-sodomy law (which covered both oral sex and anal sex) as constitutional even when applied to criminalize two consenting adults in the privacy of their bedroom (Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
, 478 U.S. 176
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
). Twelve years later, Georgia's Supreme Court would, however, find that the same law upheld by the U.S. Supreme Court was unconstitutional on state constitutional grounds, at least as applied to oral sex with persons over the age of consent (Powell v. Georgia
Powell v. Georgia
Powell v. State of Georgia, S98A0755, 270 Ga. 327, 510 S.E. 2d 18 was a decision of the Supreme Court of Georgia. Powell was charged with a complaint in which he had performed non-consensual oral sex upon a 17-year-old female in his house. The jury acquitted him of the non-consensual portion of...
, S98A0755, 270 Ga. 327, 510 S.E. 2d 18
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1998)).
On April 30, 2007, The New York Times published another editorial noting that Georgia's legislature had closed the loophole in the law and that if Wilson were tried today he would now be facing only misdemeanor charges for the same act. However, the State Senate adjourned for the year without taking up a bill allowing judges to review previous cases like Wilson's and Wilson continued to serve a mandatory 10-year sentence. The Times also noted that Wilson's attorneys had applied for a writ of habeas corpus with the U.S. Supreme Court and it urged the Court to grant it. In the same editorial, the Times lambasted prosecuting district attorney David McDade for continuing to publicly charge that Wilson participated in gang-raping a 17-year-old, even though he was acquitted of charges in that case.
On May 24, 2007 former US president Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
wrote a letter to state attorney-general Thurbert Baker
Thurbert Baker
Thurbert E. Baker was the Attorney General of the U.S. state of Georgia, serving from 1997, when he was appointed by Governor Zell Miller...
(who is also African-American) in which he questioned whether Wilson's race had played a role in his treatment. He wrote: "The racial dimension of the case is likewise hard to ignore and perhaps unfortunately has had an impact on the final outcome of the case," pointing out that white defendants have received lesser punishments for similar conduct.
Following the June ruling in Monroe County, both Attorney General Baker and Georgia Governor
Governor
A governor is a governing official, usually the executive of a non-sovereign level of government, ranking under the head of state...
Sonny Perdue
Sonny Perdue
George Ervin "Sonny" Perdue III, was the 81st Governor of Georgia. Upon his inauguration in January 2003, he became the first Republican governor of Georgia since Benjamin F. Conley served during Reconstruction in the 1870s....
expressed concern that other convicted child molesters might attempt similar legal tactics to get out of prison. While Baker called the Wilson sentence "harsh", he also noted that he had taken an oath to uphold state law.
Black leaders such as Rev. Joseph Lowery
Joseph Lowery
Joseph Echols Lowery is a minister in the United Methodist Church and leader in the American civil rights movement. He later became the third president of the Southern Christian Leadership Conference, after Rev. Dr. Martin Luther King and his immediate successor, Rev. Dr...
and the Congressional Black Caucus
Congressional Black Caucus
The Congressional Black Caucus is an organization representing the black members of the United States Congress. Membership is exclusive to blacks, and its chair in the 112th Congress is Representative Emanuel Cleaver of Missouri.-Aims:...
have criticized Baker's appeal of the Monroe County ruling. Meanwhile, Rev. Markel Hutchins, a civil rights activist in Atlanta, has criticized them for not having all the facts and failing to stand up for the victims in the case. He also questioned the motivations of Wilson's attorney, Bernstein, and urged her to attempt to find a resolution in the case.
The NAACP also marched on Douglas County, Georgia for the injustice done on Genarlow's behalf. There were many participants there including the girl's mother who stated that she forgave Genarlow and was for his release. The speakers targeted Douglas county judicial system and particularly David McDade for his unfair treatment.
External links
- My5th.org (Genarlow Wilson's criminal defense lawyer's blog)
- Outrageous Injustice (ESPN article covering the case in detail)
- One year later, Genarlow Wilson focused on being asset to community by Tambria Peeples, CrossRoadsNews, October 23, 2008.